BGC Contracting Pty Ltd v The Construction Forestry Mining

The case before the court involved BGC Contracting Pty Ltd, the applicant, and The Construction Forestry Mining, the respondent. The applicant sought interlocutory relief to prevent the respondent from exercising certain rights under the State Act, which included the right to enter the applicant’s site to hold discussions with the employees. The applicant argued that these rights were inconsistent with the Federal Act and sought an injunction to restrain the respondent from exercising these rights. The court had to decide whether the provisions of the State Act were inconsistent with the Federal Act and if the balance of convenience favoured granting the interlocutory relief.

The legal issues before the court were twofold. Firstly, whether the provisions of the State Act, which allowed the respondent to enter the applicant’s site, were inconsistent with the Federal Act. Secondly, whether the balance of convenience favoured granting the interlocutory relief to the applicant. The court considered these issues separately and together, finding that the applicant's case raised serious questions to be tried regarding the inconsistency between the State Act and the Federal Act. The court also found that restraining the respondent from exercising its rights under the State Act might go beyond merely preserving the status quo.

The court reasoned that the applicant’s case raised serious questions to be tried, as it was uncertain whether the State Act’s provisions were inconsistent with the Federal Act. The court observed that the balance of convenience was not in watertight compartments but needed to be considered both separately and together. The court concluded that the status quo was that the respondent could continue to seek entry and have recourse to the relevant Tribunal if the State Act’s provisions were found to apply. The court found that granting an interlocutory injunction might go beyond preserving the status quo by restraining the respondent from exercising its rights of entry.

The court made two orders. Firstly, it refused the applicant’s application for interlocutory relief but granted liberty to renew the application on two days written notice to the respondent. Secondly, the application was adjourned to a directions hearing to consider the motion filed by SNC-Lavalin (SA) Inc to be joined as a respondent to the application.